Dr. Joseph C. Okoye V. Dumez Nigeria Limited & Ors. (1985)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

This appeal is against the judgment of the Court of Appeal, allowing by a majority of 2 to 1 the appeal of the present Respondents from the judgment of the High Court of the Rivers State holden at Port Harcourt. In the said High Court, the present Appellant as plaintiff had claimed against the present Respondents as defendants jointly and severally as follows:

“(a) A declaration of leasehold title to that certain piece of parcel of land known as and called ANINKPOKWUODU situate being and lying at Choba Ikwerre in the Rivers State of the Federal Republic of Nigeria property of the Plaintiff under the Deed of Lease dated the 6th day of February 1976 and registered as No. 95 at page 95 in Volume 1 of Lands Registry in the Office at Port Harcourt.

(b) N500,000.00 (five hundred thousand Naira) general damages for the acts of trespass committed by the Defendants on the said land without the leave or licence of the Plaintiff; and (c) Perpetual injunction restraining the Defendants by themselves, by their servants and agents or otherwise from committing further acts of trespass on the said land.”

After having heard the evidence, the trial Judge, Allagoa C. J., granted the declaration and injunction sought and awarded N100,000 as general damages for trespass against the Respondents. Being dissatisfied with the decision of the trial Judge, the Respondents appealed to the Court of Appeal which (Belgore and Olatawura JJ.C.A. while Aseme J.C.A. dissenting) allowed the appeal, set aside the decision of the High Court and ordered a verdict of dismissal of the plaintiff’s claim in respect of the order for injunction and the award of general damages. The Appellant has now appealed to this Court against the judgment of the Court of Appeal.

The facts of the case are simple. The families of Wegwu, Ohakwu and Odunwo are the owners of the land in dispute. The 1st Respondent was the principal contractor who won the contract for the construction of the East West Road from Patani to Opoko. The 2nd Respondent was sub-contractor. Under a Lease Agreement, exhibit E, made on 17th May, 1974 the Wegwu family leased 5.5 acres of their land to the 1st Respondent for a term of 12 months of a monthly rent of N10 per acre totalling N660 for the term. The Respondents needed the land for the storage of their construction materials, plants and equipment and for the excavation of laterite to be used for road construction. The 1st Respondent paid the N660 rents to the landlords, went into possession of the land and used it for the purposes for which it was rented. Between March to May 1974 the 1st Respondent paid a total sum of N528 as per exhibits D to the landlords as compensation for land excavation in respect of the burrow pit dug by the Respondents on the land. The Respondents also fenced part of the land on which they stored their equipment and plants.

At the expiry of the foregoing Agreement, the lease was renewed for a further term of 6 months on the same conditions with effect from 18th May 1975 to 17th November. 1975. The renewed Lease Agreement was admitted in evidence as exhibit F. The 1st Respondent paid the sum of N330 as rents and continued to be in possession. At the expiry of the renewed term, the 1st Respondent intimated to the landlords that it intended to exercise its right to renew the Agreement under the option clause of the Lease Agreement but the landlords refused to renew on the ground that they had already committed themselves to leasing the land to the Appellant.

The Respondents did not vacate the land. They continued to be in possession with their equipment and plants thereon. The evidence further shows that in February 1976 while the Respondents were still in possession, the families of Wegwu, Ohekwu and Odunwo granted to the Appellant a lease for a term of 99 years over a large area of land, to wit 18.662 acres, including the area rented by Wegwu family to the Respondents. The conveyance for the lease was registered as No. 95 at page 95 in Volume 1 of the Lands Registry. Port Harcourt. It was admitted in evidence as exhibit A.

In the course of his testimony. the Appellant admitted that while negotiating for the lease he went round the land in dispute and saw some vehicles thereon. He also saw a burrow pit and the area fenced with barbed wire. He also saw the agreement between Wegwu and the 1st Respondent. He said Wegwu told him that the 1st Respondent worked there and would be leaving. He testified that at the time he got the Deed of Conveyance the Respondents had packed out of the areas; that in April 1976 the landlords told him that they had seen several vehicles on the land and that the Respondents were excavating hundreds of tons of laterite and were completely destroying the topography of the area. As the result of that information, the Appellant said he went to the land whereon he saw several drums, vehicles, caterpillars and tanks were stored. He caused photographs of the plants and part of the land to be taken. The photographs were admitted in evidence as Exhibits C1 – C32. The learned trial judge simply relied on those photographs to find the Respondents liable for waste. He said in his judgment:

“In proof of damage done to the land the Plaintiff has tendered 32 copies of photographs showing excavation done by bulldozer and tractors and the occupation of the land by several tipper lorries belonging to the 1st and 2nd Defendants.”

In parenthesis, it may be observed that the photographer, PW1, did not describe or identify any damage he had photographed. He was not asked to say what were photographed. His evidence was short:

“I know the plaintiff. I was engaged by him in April 1976 to take some photograph of his land at Choba. I produce the negative of the photographs taken and also produce the copies of the photographs, tendered, no objection and marked C – C31.”

The trial judge did not believe the Appellant that the Respondents had vacated the land by the time the Appellant got his conveyance. He found the Respondents never left the land and one of the reasons stated by him for awarding punitive damages against the Respondents was their “recalcitrant attitude” for remaining on the land after the landlords had refused them the option to renew.

In his judgment Belgore J.C.A. held that, having regard to the right of the 1st Respondent to renew the lease under the option clause and despite the refusal of the landlords to accord to the Respondent that right, the Respondents had the right to remain on the land and were lawfully on it at the time the Appellant received his conveyance. Consequently, the Appellant’s lease was subject to the right of the Respondents over the land. The learned Justice found the Appellant did not prove that the Respondents had committed any waste of the land. The only excavations and burrow pit proved and for which the landlords were paid for had been dug by the Respondents before the Appellant acquired the lease of the land. For these reasons, the learned Justice concluded, the order for injunction and the award of damage for trespass could not stand. In his dealing with the issue as to whether the Respondents were liable for trespass. Olatatura J.C.A. stated as follows:

“The plaintiff averred in paragraph 4 of the Amended Statement of Claim as follows:

“4. Sometime towards the end of March or early April 1976 the Defendants by themselves, by their servants and agents without the leave or licence of the plaintiff wrongfully broke and entered the land in dispute and therein erected structures, stored their working materials and vehicle and therefrom escavated and carried away hundreds of tons of laterites for their purpose.” (Italics mine)

The onus is therefore on the plaintiff to prove that the excavation was done either in March or April 1976. The defendants did not deny going on the land but said that they did so because of their agreement Exhibit E and F with the landlords. I bear in mind that these Exhibits have been attacked on the ground that they are inadmissible. I will return to that later. Exh. D. shows that in respect of Burrow pit No. E55 compensation was paid for this on 8/5/74 and 27/5/74 i.e. before the date complained about in paragraph 4 of the Amended Statement of Claim. The evidence of the plaintiff on this point which is hearsay and therefore inadmissible is:

“I was informed around April 1976 chat the Defendants started excavating hundreds of tons of laterites. Thus completely destroying the topography of the area.”

It is pertinent to mention that under cross-examination that he knew of the presence of the company before he started negotiating for the lease of the land. I quote him again:

“I was told that the company worked there and could be leaving. There was a burrow pit at the time I went to the site… At that time the road had been tarred and the bridge completed. The purpose of the excavation was to fill the road before tarring.”

In other words before the execution of Exhibit A the excavation had taken place for as he himself admitted this was done “to fill the road before tarring.” He agreed that the area where the excavation took place was fenced by the barbed wire. This area was clearly shown and neatly described as such in Exh. H. – the defendants- plan. If at all any trespass took place as from the date he was put in possession by virtue of Exh. A, the alleged trespass was not in respect of the excavation on the land.”

There has been no appeal to this Court against the foregoing findings of facts by Belgore and Olatawura, JJ.C.A., that the Respondents did not commit any trespass onto the land and did not commit any waste while being lawfully on the land between March and April 1976. Since the Appellant founded his case on the alleged trespass and waste committed between March and April 1976, it is sufficient to dismiss his appeal on these unchallenged findings of facts. That being the case, the only issue canvassed at the hearing of the appeal would hardly assist the Appellant. Hence I shall deal with it briefly.

The issue is what are the legal consequences of the failure to register Exhibits E and F as registrable instruments within the meaning of section 2 of the Land Instruments Registration Law, Cap. 72 Vol. 4 Laws of Eastern Nigeria 1963 applicable to Rivers State Both exhibits were tendered and admitted at the trial without objection. The issue relating to non-registration of the exhibits under the said Law was taken in the Court of Appeal during the hearing of the appeal thereat. Although there was no ground of appeal on the issue, the Court of Appeal heard the submissions of learned counsel on it and decided the question in favour of the Respondents.

Relying on Alade v. Olukade (1976) 2 S.C. 183 at 189, Chief Onyiuke for the Appellant submitted that, having regard to the mandatory provisions of section 15 of the said Law that no registrable instrument which has not been registered should be given in evidence, the issue of admissibility in evidence of such instrument may be taken at any time on appeal even if objection to its admissibility was not taken at the trial. Learned counsel contended that Exhibit E and F are instruments within the meaning of section 2 of the Law and the fact that neither had been registered rendered both inadmissible in evidence by virtue of the provisions of section 15 of the Law. Consequently, according to Chief Onyiuke the whole evidence relating to the lease granted to the 1st Respondent by Wegwu family including the option to renew the lease must be expunged from the record. The majority decision of the Court of Appeal cannot therefore stand and learned counsel referred to Elkali and Anor. v. Fawaz 6 WACA 212 and Jammal v. Saidi 11 N.L.R. 86 to buttress his submission. In that event, learned counsel concluded the only pieces of evidence on which the Court can act upon are: Exhibit A which is the Appellant’s title and under which he entered the land and the admitted fact that the Respondents entered the land to excavate and carried away laterite. Accordingly, the Respondents were trespassers.

I accept the submission of Chief Onyiuke that Exhibits E and Fare instruments within the meaning of section 2 of the Law and are registrable. I do not however agree with his contention of the legal effect and consequences of their non-registration having regard to the facts and circumstances of this case.

It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has-acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase of money or rent: Savage v. Sarrough (1937) 13N.L. R. 141. Ogunbambi v. Abowab (1951) 13 W.A.C.A. 22, Fakoya’ v. St. Paul’s Church, Shagamu (1966) 1 All N.L.R. 74, Oni v. Arimoro (1973) 3 S.C. 163, Bucknor-Maclean v. Inlaks (1980) 8-11 S.C. 1 and Obijuru v. Ozims S.C. 48/1984 delivered on 4th April 1985, unreported yet.

It follows from the foregoing that the 1st Respondent’s lease under Exhibit E and F was as good as if the instruments had been registered. The renewed lease under Exhibit F for the term of 6 months expired on 17th November, 1975. The option for renewal under the agreement conferred on the 1st Respondent the right to renew the lease for another term of 6 months which entitled it to remain on the land as a tenant of Wegwu family up to 16th May, 1976. The fact that the Wegwu family was not willing to exercise the option was irrelevant as the family was compellable by specific performance to exercise it: Moukarzel v. Hannah 12 W.A.C.A. 125. Being on the land by virtue of the option for renewal when the Appellant acquired his lease, the Respondents were lawfully on the land. The evidence shows that the Appellant was aware of the tenancy of the Respondents and their presence on the land when he received his conveyance. So he had notice of the 1st Respondent’s equity. Consequently, his legal estate did not affect the Respondent’s equity. The Appellant took his lease subject to the right and equitable interest of the Respondents. Accordingly, the appeal fails and it is dismissed. The decision of the Court of Appeal is affirmed with N300 costs to the Respondents.M. L. UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Bello, J.S.C. I entirely agree with the reasons and conclusions therein. I do not wish to add anything.

Accordingly the appeal is hereby dismissed with N300.00 costs to the respondents.

D. O. COKER, J.S.C.: I agree for the reasons given in the leading judgment just read by my learned brother, Bello, J.S.C., that his appeal should be dismissed.

There is however a matter which I consider important and needs clarification. The point was not taken or argued and therefore cannot be decisive of the appeal. There were two piece of land involved in this matter. The first pieces was that leased to the 1st Respondent, while the other is that for which permission or licence was granted to the 1st Respondent to excavate and remove laterite. That was the area containing the burrows.

As to the first parcel, the evidence is clear and undisputed that the 1st Respondent paid the owners of the land advance rents and subsequent rents as and when due and in pursuance to the oral agreement, the receipts whereof the owners acknowledged in writing. There is also undisputed evidence that the 1st Respondent took possession of the land pursuant to the said agreement and the payment of rent. The authorities cited in the leading judgment, represent the correct state of the law regarding the application of Section 15 of the Land Instrument Registration Law of the East Central State, Cap. 70 which is applicable to the Rivers State. Similar provisions exist in all the States of the former Southern Region of the Federation. See M. O. Obisanya v. Ebenezer Nwoko & Anor. (1974) 6 SC. 69 p.77; and Joseph B. Oni & Ors. v. Samuel Arimoro (1973) N.M.L.R. 237. The receipt tendered by the 1st Respondent in support of its defence created a personal contract between it and the land owners whereby certain rights were conferred on the 1st Respondent over the land as against the landowners and their successors. In pursuance of the contract the Respondent exercised those rights over the land. The trial judge in considering the defence should have been justified in referring to the contents of the receipt in order to draw such inferences as were reasonable. Once the receipts were pleaded and received in evidence the trial judge ought to examine their contents. The evidence in this case is clear that the Appellant was aware of the presence of the 1st Respondent on the land and saw the heaps of laterites deposited thereon before he entered into the lease agreement with the landowners. He failed as he ought to make necessary enquiries. He was bound with notice of the interests of the 1st Respondent over the land.

As regards the option clause, it is my view that the trial judge was in error in his view “that the option clause merely created an opportunity but not a right to remain on the land irrespective of the consent of the land owners.” None of the Agreements (Exh. E & F) said so.

Each of them simply states:-

“To renew the option of the lessee when the term granted expired.”

It does not say that the renewal was subject to the consent of the lessors as the trial judge said. An option clause in a tenancy agreement is a covenant which runs with the land and binds the successors of both the lessor and the lessee in possession. It is immaterial that the lease is not registered provided the lessee has entered into possession and paid the rent pursuant to the agreement, he acquired a legal tenancy. Both parties in such a case are bound by the terms of the agreement and the parties are treated as having the same rights and as being subject to the same liabilities as if a valid lease had been granted. See Manchester Brewery Co. v. Coombs (1901) 2 Ch. 608, p.613.

As regards the second portion of land for excavation of laterite, my view is that all the 1st Respondent received from the landowners was a mere licence. The relationship between them was not one of landlord and tenant but that of a licensee. See Foster v. Robinson (1951) 1 KB. 149 p. 156; (1950) 2 All E.R. 342, 346 Errington v. Errington and Anor. (1952) 1 All E.R. 149. At page 154 line D. Denning, L.J. stated that:-

” The difference between a tenancy and a licence is, therefore, that in a tenancy an interest passes in the land, whereas in a licence it does not. In distinguishing between them, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession or not. If he was let into exclusive possession, he was said be a tenant, albeit only a tenant at will: See Doe D. Tomes v. Chamberlain (4), Lynes v. Snaith (2); whereas if he had not exclusive possession he was only a licensee; Peakin v. Peakin (5) This test has, however, often given rise to misgivings because it may not correspond to realities.”

And at p. 155 Denning went further to state:-

“The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee.”

The 1st Respondent as licensee for consideration was entitled to reasonable notice of revocation and to a reasonable time to remove the material which were on the site before the notice of revocation. See Aldin v. Latimer Clerk Muirhead & Co. (1894) 2 Ch. 437 Canadian Pacific Railway A Co. v. R. (1931) A.C. 414 p. 432.

There is no evidence on record that the 1st Respondent was given any notice to quit that portion of land over which it had licence to excavate. The 1st Respondent cannot therefore be liable in an action for trespass. I will dismiss the appeal and award the 1st Respondent costs which I fix at N300.00.

A. G. KARIBI-WHYTE, J.S.C.: I have had the opportunity of reading in its draft form the judgment of my learned brother Bello, J.S.C. I am in complete agreement that this appeal should be dismissed. I merely add in amplification my views on the crucial issue contended by appellants that an unregistered registrable instrument being inadmissible in evidence in a matter affecting the land for which it was tendered is inadmissible for any other purpose whatsoever. The facts of this appeal and the claims before the Court have been very fully set out in the judgment of my learned brother Bello, JSC. and I refrain from repeating them here. I confine myself to the only issue of any importance argued before us arising from fifteen grounds of appeal filed in this Court. I reproduce below the relevant grounds of appeal for the purposes of this judgment, for ease of reference.

“GROUNDS OF APPEAL

3. The Federal Court of Appeal erred in law in holding that the admissibility or inadmissibility of EXHIBITS E and F did not affect the legality or enforceability ‘of the “option clause which were created by and embodied in the said exhibits as if the said option clause had a distinct and separate existence from the exhibits which created it and in which it is embodied.
4. The Federal Court of Appeal erred in law by holding that EXHIBITS E and F were not instruments within the definition and
5. The Federal Court of Appeal misdirected itself by failing to observe that even EXHIBIT F was described therein as instrument and the stamp duty of N33.00 (thirty-three naira) assessed and paid accordingly in respect thereof.
6. The Federal Court of Appeal erred in law by importing the word “premises” inito EXHIBITS E and F when the wordings, contents and purpose of the said exhibits were unambiguous and contained not the word “premises” which was irrelevant in ascertaining whether EXHIBITS E and F were instruments within the Land Instrument Registration Law aforesaid.
7. The Federal Court of Appeal erred in law by holding or drawing the conclusion that EXHIBITS E and F “cannot even be registered as required having been so exempted by S. 9 of the same law” (meaning the land Instrument Registration Law aforesaid) when it is clear that an unambiguous interpretation of S.9 aforesaid granted no such exemption to EXHIBITS E and F.
8. The Federal Court of Appeal erred in law in being of the view “that options to renew run with the land and cannot be revoked as long as it is “exercisable” and by applying the view to the situation in question where EXHIBITS E and F being the instruments creating the options were unregistered and a fortiori inadmissible in evidence the Federal Court of Appeal erroneously came to the conclusion that the “appellant have the right to remain on the land up till May 1976 notwithstanding the landlord’s reluctance and sudden change of mind” when it was very clear that the defect in and the inadmissibility of the said EXHIBITS E and F made it impossible for the Respondents to rely on them and the option clause therein contained either at the trial or on appeal.
9. The Federal Court of Appeal erred in law by failing to hold that EXHIBITS E and F were inadmissible and remained so whether objected to or not at the trial and as such the Respondents could not rely on any of its terms and conditions and could not enforce same either against the landlords or purchaser from the landlords for value.
10. The Federal Court of Appeal erred in law by upholding the appeal against the damages awarded by the trial Court when there was no argument or submission by the Respondents that the trial Court acted on wrong principle of law or that there was an erroneous estimate justifying a reassessment of the damages or that the unchallenged evidence of trespass adduced by the Appellant at the trial did not justify the damages awarded.”

Despite the prolixity of appellants’ grounds of appeal, the brief of argument filed and relied upon before us confined the arguments in this appeal to the admissibility of Exhibits E /J,: F, which Counsel to the appellant laconically described as respondents muniments of title, or warrant to be on the land in dispute. It is accepted on both sides that the real issues for determination in this appeal are:

(a) Whether Exhibits E & F are instruments within the meaning of S.2 of the Land Instruments Registration Law, Cap. 72 Volume 4 Laws of Eastern Nigeria 1963 which is applicable to Rivers State.

(b) Whether Exhibits E & F are registrable instruments. (c) If they are registrable instruments, the legal consequences of failure to register.

(d) The position in law of the transaction covered by Exhibits ‘E’ & ‘F’ between the native lessors as grantors and the respondents who in law are aliens and Non-Nigerians.

It is necessary to dispose of (d) summarily since it is not covered by any of the grounds of appeal filed. The onus is on the appellant to show that respondents are aliens and were affected by the Acquisition of Land by Aliens Law. There is no averment to that effect in appellants’ statement of claim in the Court of trial, and the issue was not even raised on appeal. None of the Justices of the Court of Appeal referred 10 the issue in their judgments. Since we have not the benefit of the opinion of the Court below on the issue, it is inappropriate for this Court to consider it. – See United Marketing Co. v. Kara (1963) 1 WLR. 523; Ahamath v Umma (1931) A.C. 799. I consider it important in discussing this issue to refer to certain aspects of the evidence in this appeal, relevant to the issue. It is not disputed that 1st respondent and the appellant derive their titles to their respective parcels of land from the same grantor namely the Wegwu, Ohakwu and Odunwo families of Choba.

It is also not disputed that 1st respondent was granted 5.5 acres of land before appellant was subsequently granted his 18.662 acres. It is also not disputed that the area so subsequently granted to the appellant included the area earlier granted to the 1st respondent.

Concisely stated, the facts were that 1st respondent a Principal Contractor constructing the East-West Road, through Rivers State, entered into a Lease Agreement on the 17th May, 1974 with the families of Wegwu, Ohakwu and odunwo for 5.5 acres of their land for a term of 12 months at a monthly rent of N10 per acre totalling N660 for the term. The second respondent is a sub-contractor of the 1st respondent. The Respondents required the land for the storage of construction materials, plants and equipment, and for the excavation of laterite used for road construction. Respondents after paying rent for the term went into possession of the land and used it for the purposes for which it was acquired. The Lease Agreement had in it an option clause enabling respondents to renew. Between March to May, 1974 1st Respondent paid a total sum of N528, to the Landlords as compensation for land excavation in respect of the burrow pit dug by them on the land. Exhibit ‘D’ is the receipt for payments made in respect of the land leased to respondents. Respondents also fenced part of the land on which they stored their equipment and plants. This Agreement is Exhibit E in these proceedings.

At the expiry of Exhibit E, the Lease was renewed for a further period of six months on the same terms and conditions with effect from the 18th May to 17th November, 1975. This is Exhibit Fin these proceedings. The 1st respondent paid N330 as rents for this period and continued in possession.

At the expiry of this term 1st respondent intimated the landlords of his desire to exercise his option to renew in accordance with the option clause in the agreement. The Landlords refused for the reason that they had committed themselves to leasing the area to the appellant. Respondents continued in possession with their equipment and plants as before. I reproduce below Exhibits “E” & “F”. “(Exh. E’ in PHC/177/76: Dr. Okoye vs. Dumez & Anor.)

(Sgd.)

7/9/77.

LEASE AGREEMENT

The Agreement made this 17th day of May 1974 at Ahoada

Town in Ahoada Division of the River State of Nigeria.

Between:-

Amos Wegwu

Mark Omiji

Robinson Olumati

and

representing the Wegwu family of ISOBA hereafter called the Lessors which term shall include the successors in title of the Lessors of the one Part. And Dumez Nigeria Ltd., residing at Udebu Camp Ahoada Town, hereinafter called the Lessee which term shall include the suceessors in title of the Lessee of the other Part.

Whereas the Lessors are Owners in Possession of a portion of farm Land called Wegwu Farmland and situated at Isoba village in isoba Division, free from all incumbrances.

And whereas the Lessors have agreed with Lessee to grant to the Lessee a term of 12months for 5.5 acres of the said farmland at the agreed rent of N10 (Ten) per Acre per month and totalling N660.00 (six hundred and sixty naira only).

It is hereby agreed as follows:-

1. That in consideration of the sum of N660.00 paid by the Lessee to the Lessors the receipt whereof the Lessors hereby acknowledge the Lessors hereby grant a term of 12 months to the Lessee for the storage of Road Construction materials and for various installations by the Lessee for the said term of 12 months.

The Lessee Covenants as follows:-

1. To pay all rents due to the Lessors in advance.
2. To renew at option oil he Lessee when the term granted expired.
3. To surrender possession to the Lessors at the end of the unrenewed term.

The Lessors Covenants as follows:-

1. That on payment of all rents and dues by the Lessee the Lessors shall grant quiet and undisturbed use of some for the term granted.

Witness, hereby the parties hereunto set their hands the day and year above mentioned.

(Signed): by the Lessors.

1. (Sgd.) Amos Wegwu
2. (Sgd.)
3. (Sgd.)

In the presence of:- (H.R.T.I.) Oriji Igwe

Signed by the Lessee (Stamped)

DUMEZ (NIG.) LTD.

PATANI AHOADA OPUOKO

ROAD AND BRIDGES

P.M.B. 126, AHOADA

In the presence of Signed

…………………

………………… ………………..

Interpreter Chief Magistrate of J. P.

Prepared by me (Sigd.) E. E. Ihua Maduenyi

(SOLICITOR)

CERTIFILD TRUE COPY Ahoada Town

PRINCIPAL REGISTRAR

“(Exch. “F” in PHC/177/76: Dr. Okoye v. Dumez & Anor.)

(Sgd.)

7/9/77

RENEWED LEASE AGREEMENT

The Agreement made this 29th day of August, 1975 at Ahoada Town in Ahoada Division of the Rivers State of Nigeria.

Between:-

Amos Wegwu, Mark Omiji and Robinson Olumati representing the Wegwu Family of Choba hereafter called the Lessors which term shall include the successors in title of the lessors on the one Part. And Dumez Nigeria Ltd. residing at Udebu Camp, Ahoada Town hereinafter called the Lessee which term shall include the successors, in title of the Lessee on the other Part.

Whereas the Lessors are owners in possession of a portion of farm land called Wegwu Farm land and situated at Isaba village in Ikwerre Division, free from all incumbrances.

And whereas the Lessors have agreed with the Lessee to grant to the Lessee a term of 6 months for 5.5 Acres of the said farmland at the agreed rent of N10.00 (Ten naira) per Acre per month and totalling N330.00 (Three hundred and thirty naira only).

The term “arts on 18th May, 1975 and finishes on 17th November, 1975.

It is hereby agreed as follows:-

1. That in consideration of the sum of N330.00 paid by the Lessee to the Lessors the receipt whereof the Lessors hereby acknowledge the Lessors hereby grant a term of 6 months to the Lessee for the storage of Road Construction material and for various installations by the said term of 6 months.

The Lessee Covenants as follows:-

1. To pay all rents due to the Lessors in advance.
2. To renew at the option of the Lessee when the term granted expires.
3. To surrender possession to the Lessors at the end of the unrenewed term.

The Lessors Covenant as follows:-

1. That on payment of all rents and dues by the Lessee the Lessors shall grant quiet and undisturbed use of same for the term granted.

Witness hereby the parties hereinto set their hands the day and year above mentioned.

1n the presence of:

Signed by the Lessee:

Signed by the Lessors:

1. (Sgd.) Amos Wegwu
2. (Sgd.)
3. (Sgd.)

In the presence of:

Signed by the Lessee: (Sgd.)

(Stamped) DUMEZ(NIG.) LTD.

PATANI AHOADA OPUOKO

ROAD AND BRIDGES

P.M.B. 126, AHOADA

RIVERS STATE

The foregoing having been read over to the parties and interpreted to them in………..

….. Language and they appear to understand same perfectly.

…………………………… ………………..

Interpreter Chief Magistrate or J. P.

Prepared by me (Sgd.) E.E. Ihua Maduenyi

(SOLICITOR)

Ahoada Town. Rivers State.

RD/31256/77

THE WITHIN INSTRUMENT IS IN THE

OPINION OF THE COMMISSIONERS OF

STAMP DUTIES CHARGEABLE WITH A

DUTY OF THIRTY-THREE NAIRA

AND THE DUTY THEREON HAS BEEN

ASSESSED ACCORDINGLY.

(Sgd.)

COMMISSIONER OF STAMP DUTIES

Lease Agreement N3.00

Penalty N30.00

CERTIFIED TRUE COPY

(Sgd.)

PRINCIPAL REGISTRAR”

In February, 1976, whilst respondents were in possession, their Lordships granted to appellant a lease for a term of 99 years over a piece of land measuring 18.662 acres including the area leased to respondents. This conveyance to this lease was registered as No. 95 at page 95 in Volume 1 of the Lands Registry in Port Harcourt. This is Exhibit ‘A’ in these proceedings. It is important to note that appellant in his evidence admitted that while negotiating for the lease he went round the respondents’ land and saw some vehicles. He also noticed a burrow pit and the area fenced with barbed wires. He was also shown the Agreement between 1st respondent and their Landlord that respondents would soon be leaving. He said that he was told that at the time he signed the Deed of Convey ace, respondents had moved out of the area.

However, he was told in April, 1976 and he went and himself saw that there were many vehicles of the respondents on the land and that respondents were still excavating hundreds of tons of laterite and were completely destroying the topography of the area. In appellant’s action he claimed, inter alia –

(a) a declaration of leasehold title to the piece or parcel of land known as and called Aninkpokwuodu situate being and lying at Choba Ikwerre in Rivers State of the Federal Republic of Nigeria property of the Plaintiff under the Deed of Lease dated the 6th day of February, 1976, and registered as No. 95 at page 95 in Volume 1 of the Lands Registry in the Office at Port Harcourt.

(b) N500,000.00 (Five hundred thousand naira) general damages for the acts of trespass committed by the Defendants on the said land without the leave or licence of the plaintiff. Respondents have denied the trespass and in their statement of defence averred as follows:-

Statement of Defence

5. The defendant deny paragraph 4 of the Statement of Claim and would put the plaintiff to the strictest proof thereof
6. The 1st defendant also in May, 1974 leased a portion of land adjoining the said area from which laterite was dug from the Elders of Wogwu Family of Choba Village and established a Camp for dumping their building material, namely stones chipping barels of cool tar; gravels and sand as well as iron rods and pipes with other machines for Road Construction.
7. The 1st defendant entered into possession of the said land and has remained in possession till today without any hindrance from the plaintiff or any other person.
8. The 2nd defendant was also permitted by the 1st defendant to dump some of their Road Construction materials with the 1st defendant on the said property.
9. The 1st defendant used the said Camp as a base to construct the Choba Bridge and to continue their road construction towards Eleme.
10. Apart from the 1st defendant’s Camp at Wogwu farmland established and possessed since 1974 the defendants have at no time trespassed into any land in the possession of the plaintiff.
11. The defendants will at the trial tender the lease agreement and receipts for payment of rents to their landlords.
12. The area of land occupied by the defendants on Wogwu farmland was clearly demarcated by a fence round it since 1974 and day and night security officers have kept watch over the material dumped in the Camp.”

It is clear from paragraph 3 of the amended statement of claim that appellant relied on Exhibit ‘A’ for title to the land in dispute; whereas respondent relied on Exhibits ‘E’ & ‘F’ and paragraph 12 of the amended statement of defence. Exhibit A is a deed of conveyance registered under the Land Instruments Registration Law. Exhibits ‘E’ & ‘F’, which are lease agreements were not so registered. Chief Onyiuke S.A.N. both in his brief of argument, and in his animated and forceful argument before us has submitted on the authority of Abolade Alade v. Salawu Olukade (1976) 2 Sc. 183 at p. 189 and Minister of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe & Ors. SC. 169/68 of 31/1/69, that since Exhibits ‘E’ & ‘F’ are registrable instruments under Section 2 of the Land Instruments Registration Law, and were not registered, they were therefore incurably inadmissible as evidence in the proceedings. Counsel therefore submitted that since the Court of Appeal decided the appeal on the strength of Exhibits ‘E’ & ‘F’, and oral evidence of their contents including the option clause, they should be expunged from the record and deemed never to have been part of the record. It was submitted, if this view was accepted only Exhibit “A”, namely appellant’s title to the land in dispute constitute evidence in this case, and accordingly the judgment of the trial judge ought to be restored. The following decided cases were referred to in argument. Delaney v. Smith (1946) 1 KB. 393, 400; Jammal v. Fetuga 11 NLR. 86; Elkali & Anor. v. Fawaz 6 WACA. 212; Griffin v. Talabi 12 WACA. 571. On Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR. 74 counsel sought to distinguish the case in hand from that case. He conceded that Exhibits ‘E’ & ‘F’ can be tendered in evidence if the case had been between the land owners and the defendents, and the land owners were being sued by the defendants on the personal obligation imposed on the land owners to execute a lease under the option clauses of Exhibits “E’ & ‘F’. Counsel admitted that Exhibits ‘E’ & ‘F’ can be tendered and are admissible in an action for specific performance against the landowners to enforce the provision of the option clause.

Chief Onyiuke conceded that respondents were lawfully on the land when appellants had a lease of the land in dispute. He however argued that they became trespassers immediately appellant had the lease. Counsel did not consider the case of Bucknor-Maclean & anor. v. Inlaks Ltd. (1980) 8/11 SC. 1 as strictly relevant. In Bucknor-Maclean v. Inlaks Ltd., the issue was the proper form to be followed in registering an instrument. The instrument had in fact been registered. In the instant case, it is a case of non-registrable instrument.

In my judgment it is relevant to consider the provisions of the Land Instruments Registration Law, and how the non-registration of Exhibits -E’ & ‘F’ affect the claims of the appellants viz-a-viz the respondents. I have already reproduced Exhibits ‘E’ & ‘F’ in this judgment. Both A. Belgore and O. O. Olatawura, JJ.CA. in the Court below have held that Exhibits ‘E’ & ‘F’ are not instruments under s.2 of the Land Instruments Registration Law, and therefore are not inadmissible by virtue of S.15 of that Law. They both held that the transaction related to land which was “mere premises for short period is (sic) tenancy far from permanency found in transfers, charges, lease, etc. which are for long periods or could be held for long periods. If the law is to regard every transaction affecting land as instrument the mischief from such will be immense and will create great social upheaval …..” It was then held that the land in question in Exhibits E & F, is “mere premises within the meaning of the Recovery of Premises Law (Cap. 113 LEN 1963)” per Belgore J.CA. at p.59. Accordingly, A. Belgore, J.CA. at p. 60, held that the applicable law was the provisions of section 7 of the Recovery of Premises Law which required on the part of the landlords to give notice to quit and intention to recover possession to the respondents. He held finally on this point that the “villagers (the land owners) were never joined as parties and this failure was due to the fact that the purported non-registration under S.15 of the Land Instrumtints Registration Law never cropped up throughout the trial. Only the villagers (the land owners) could claim the benefit of such failure, if there was any, and not this plaintiff/respondents” Olatawura, J.CA. at p. 67 was more precise. He said,

“I now come to Exhibits E & F whieh Chief Muoma said was inadmissible on the ground that it was not registered as required by law. Section 2 of the Land Instruments Registration Law

defines “Instrument” as a document affecting land whereby “one party in favour of another confers, transfers any right or title to or interest in land”. Both were described as “Lease Agreements” and the parties to the agreement described as “Lessors and Lessee”. And the ”’Lease” was for a term of 6 months.” The Exhibits E & F are not lease as they are less than 3 years. They are merely agreements. They cannot even be registered as required having been so exempted by S. 9 of the same law.”

Mr. Balonwu, S.A.N., for the respondents adopted this view and made it as his main argument before us. I do not think that on a careful reading of the enabling statutory provisions, this view can be correct.

Section 2 of the Land Instruments Registration Law defines “instrument” to mean “a document affecting land in Eastern Nigeria, whereby one party hereinafter called the grantor) confers, transfers, limits, charges or extinguishes infavour of another party (hereinafter called the grantee) any right or title to, or interest in land in Eastern Nigeria, and a certificate of purchase and a power of attorney under which any instrument may be executed, but not a will;”

On a calm examination of Exhibits ‘E’ & ‘F’, there is no doubt each of them entitles the respondents described as Lessee to stay on the land in dispute for the purpose of storing of construction materials, plant and equipment and for the excavation of laterite used for road construction. It thus confers on, and transfers to the respondents, the right to use the land for those purposes and at the same time limits or extinguishes the right, interest or title of the land owners, described as Lessors, for the period of the Lease in respect of the area occupied by the respondents. There is no doubt that Exhibits ‘E’ & ‘F’, fall within the definition and are instruments for the purposes of the Law, which by S.15 are inadmissible in proceedings unless registered – see Jammal v. Fetuga 11 NLR. 86. The definition of instrument in S.2 did not speak of a period or limitation of time. Besides S.9 of the same law relied upon by the majority in the Court of Appeal does not support the contention that leases under 3 years duration are not registrable. Section 9 of the Land Instruments Registration Law provides as follows:-

(1) “No instrument executed after the commencement of this Law, other than a power of attorney, shall be registered unless it contains a proper and sufficient description, and subject to the regulations, a plan of the land affected by such instrument. The decision of the registrar as to the adequacy of the description and plan of any land in any instrument. The decision of the registrar as to the adequacy of the description and plan of any land in any instrument for the purpose of identification shall be final, subject to any order of the High Court.”

Section 9(1) does not exclude any instrument as defined under S.2 from registration; it merely prescribes the conditions for their registration. See Erinosho v. Owokoniran (1965) NMLR. 479 at p. 484. Consequently the provisions of S.3 of the Land Instruments Regulations merely states the class of instruments excluded under S.9, in respect of the requirements of that section. S.3(a) excludes from that section “Lease of land, houses or buildings for a term not exceeding three years (without a right of renewal).” This is the nearest provision to the contents of Exhibits ‘E’ & ‘F’, which at any rate contain option clauses, and are therefore outside its purview. However, the requirement of attaching a plan to the instrument is, in my opinion, not the same as excluding such instrument from registration. I therefore agree with the submission of counsel to the appellant and with Aseme, J.CA. in the Court of Appeal that Exhibits ‘E’ &’ F’ are undoubtedly leases for a definite terms of years, how be it six months, conferring interest in land from the Lessors the Wegwu family of Choba village for the Lessees, the 1st respondents and are therefore instruments within 5.2 and registrable under the Land Instruments Registration Law. If however the right, interest or title claimed by the respondents is not conferred by the documents. Exhibits ‘E’ and ‘F but by some other act of the parties or by some other means and could exist without Exhibits ‘E’ and ‘F. so that Exhibits ‘E’ and “F. became an appendage to that other act or other means, then Exhibits -E’ & ‘F’ are not within the ambit of the Act and are not registrable. – See Coker v. Ogunye (1939) 15 NLR. 57.

The crucial question to be answered in this appeal is what is the effect of the non-registration of Exhibits -E’ and ‘F which are registrable instruments within the provisions of section 2 of the Land Instruments Registration Law There is a long and impressive judicial authority for the proposition that the non-registration of a registrable instrument renders such instrument inadmissible as evidence in a litigation where such instrument is relied upon as evidence of title. – See Abdallah Jammal v. Said; & Fetuga 11 NLR. 86. Elkali & anor. v. Fawaz 6 WACA. 212 at p. 214. Coker v. Ogunye (1939) 15 NLR. 57; Ogunbambi v. Abowab (1951) 13 WACA. 222. Amankra v. Zankley (1963) 1 All NLR. 364. Section 15 of the Lands Instrument Registration Law provides simply as follows –

“No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered. Provided that a memorandum given in respect of an equitable

mortgage affecting land in Eastern Nigeria executed before the 1st day of July, 1944, and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.”

The proviso is not relevant in this case. ‘The Lands Instruments Registration Law does not relate to registration of title, and does not affect the validity or otherwise of the instrument not registered; it is intended to give some measure of security and protection against fraud. What the registration is concerned with is the instrument and clearly not the interests thereby granted. It seems clear-from the provisions’ of S.15 that the intention was to render an instrument requiring registration, but not registered ineffectual with respect to claims relating to the land unless and until it was registered. Thus although registrable unregistered documents are inadmissible in evidence in legal proceedings relating to such land, there is judicial authority for the view that the transaction may give rise to enforceable equitable interests. Fakoya v. St. Paul’s Church Shagamu (1966) 1 All NLR. 74 is a case where defendant and his two sisters agreed in writing to sell a piece of family land to the church. They were paid the purchase price and they agreed to execute a conveyance when ready. The sisters executed the conveyance but the defendant refused on the ground that the land in question belonged to the larger family in which his sisters and himself were only a part. The church brought an action against them for specific performance which was granted in the High Court. Defendant appealed to the Supreme Court where the following questions were raised namely-

(1) Was the agreement an instrument for the purposes of the law.

and

(2) Was it pleaded and produced “as affecting land”

Section 16 of the Land Instruments Registration Law of the former Western Nigeria, which is in pari materia with the provisions of S.15 in consideration in this case was considered, and it was held that the agreements for sale was an estate contract and registrable within the definition of 5.2 of the Land Instrument Registration Law.

Thus although the document was by virtue of S.16 (as here S.15) inadmissible in evidence, the Supreme Court was concerned with the purpose for which the document was produced. In Fakoya’s case the agreement for sale was produced to show that the church had contractual rights of a kind giving them an equitable interest in the land and was therefore entitled to the decree of specific performance. The Supreme Court dismissed the appeal and endorsed the view that the agreement which was an unregistered registrable document could be relied upon to support a claim for specific performance.

It would therefore seem to me apposite and admissible in this action where the documents, Exhibits ‘E’ & ‘F’ were tendered in an action against the respondents for a declaration and trespass, not for the purposes of claiming title but as evidence that respondents were lawfully on the land in dispute. It is admissible to show that respondents were not trespassers to the land in dispute. In my opinion where a registrable unregistered Instrument is regarded as inadmissible in evidence, it may be necessary on a proper consideration of the document itself, and the purposes for which it was tendered to determine whether it is not admissible for that purposes. If the purpose for which it is tendered did not affect any legal interest in land, it is in my opinion admissible for the purpose for which it was produced – namely in this case an equitable right to remain all the land.

1 must add one final point relating to the doctrine of notice, which is clearly supported by the admissions of the Plaintiff/Appellant at the trial. Under cross-examination plaintiff/appellant admitted, al p. 22 –

“I was laid that the company worked there and could be leaving. There was a burrow pit at the time I went to the site ….. At the time the road had been tarred and th bridge completed.”

Earlier in his evidence in chief he said, at pp. 21-22 “I was informed around April, 1976 that the defendants started evacating hundreds of tons of laterite, thus completely destroying the topography of the area. I went consequently to Choba. I saw several drums stored in the area together with vehicles, caterpillars and tanks. I asked one European I saw there why they were making all these materials. He told me that the land belongs to the 1st defendants.”

These are unequivocal admission by appellant that he had notice of the presence and possession by the respondents of the land in dispute. The purpose of registration is to protect third parties from fraud and the element of surprise likely to arise from non-registration. Hence where a purchaser with notice of the possession by a third party enters into contract, with respect to the land, with respect to the land he will not be entitled to rely on the want of registration by the third party. See Ogunbambi v. Abowab (1951) 13 WACA. 222. The equity of the non-registered instrument binds subsequent purchasers with the exception of bona fide purchasers for value without notice of the existence of the equity. – See Fakoya v. St. Paul’s Church, Shagamu (supra). In Orasanmi v. Idowu (1959) 4 FSC. 40, where the purchaser had no notice of the appellant’s equitable interest, even after inquiries and this was because appellant was not continuously in possession, it was held that being purchaser for value without notice he took free of appellant’s equitable interest. See also Ogunbambi v. Abowab (1951) 13 WACA. 222,

Omosanya v. Anifowoshe (1959) 4 FSC. 94.

Appellant in this case had notice of the equitable interest of the respondents and cannot take free of such interest. Thus although Exhibits ‘E’ & ‘F’ are unregistered registrable instruments, they gave rise to equitable interests which must be considered in the determination of their rights in this action. They are therefore admissible to prove such equitable interests. – See Obijuru v. Ojims SC. 48/1984delivered on 4th April, 1985(unreported) Oni v. Arimoro (1973) 3 SC. 63; Bucknor-Maclean v. Inlaks & Ors. (1980) 8/11 SC. 1 Djukpan v. Orovuyoube (1967) NMLR. 287, 291.

I will accordingly dismiss this appeal, and affirm the judgment of the Court of Appeal with N300 costs to the respondents.

S. KAWU, J.S.C.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Bello, J.S.C. and I entirely agree that the appeal should be dismissed.

The appeal is hereby dismissed with costs against the appellant as ordered by my learned brother, Bello, J.S.C.

Appeal Dismissed.

Decision of the Court of Appeal affirmed

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SC.89/1984